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As previously reported in a Steptoe Coal Ash Rule update, the US Environmental Protection Agency (EPA) has invited the states, pursuant to the Water Infrastructure Improvements for the Nation Act (WIIN Act), to propose state level programs for the management of coal combustion residuals (CCR). In August of 2017, EPA released an interim State Permit Program Guidance Document which is intended to provide states with step-by-step instructions for developing and submitting their own CCR permit programs. The guidance document makes clear that, once approved, a state-level permit program will operate “in lieu of” the federal CCR Rule. One important caveat is that any proposed state-level program must be “at least as protective as” the federal CCR Rule.

At the same time, EPA has proposed amendments to the CCR Rule designed to allow states additional flexibility in setting alternative performance standards in their individual CCR plans. The comment period for the proposed amendments ended on April 30, 2018. EPA received over 2,000 written comments, many of which were anonymous and most of which urged EPA not to amend the CCR Rule. EPA has stated that it intends to take final action on its proposed rule changes no later than December of 2019. Litigation will likely follow.

Concurrently, a lawsuit filed by the Utility Solid Waste Activity Group (USWAG) challenging certain provisions of the 2015 Coal Ash Rule is currently pending in the DC Circuit. The court heard oral argument on USWAG’s challenge in November of 2017, but has yet to render a decision. The DC Circuit may strike down certain provisions of the CCR Rule.

So while states are entitled (and arguably are being encouraged by EPA) to submit their own CCR plans for approval under the WIIN Act, the scope of the alternative performance standards states will be allowed to incorporate into their proposed plans remains in flux. Perhaps for that reason, very few states have sought approval for CCR permit programs.

Oklahoma was the first state to apply for approval. The state submitted its application on August 3, 2017 and EPA notified Oklahoma that its application was complete on December 21, 2017. EPA published a Federal Register notice proposing to approve Oklahoma’s CCR permit program on January 16, 2018, and the public comment period expired on March 2, 2018. A public hearing occurred on February 13, 2018 in Oklahoma City. Final approval is expected soon.

While it has not formally requested WIIN Act approval from EPA, the Alabama Department of Environmental Management (ADEM) has proposed amendments to Alabama’s solid waste regulations related to CCR. Critics have contended that ADEM’s proposed amendments are more flexible than even EPA’s proposed amendments to the CCR Rule (and therefore could not gain approval under the WIIN Act), including a provision that will allow ADEM to waive remediation of contaminated groundwater in certain circumstances and allowing ADEM to establish alternative groundwater protection standards for constituents for which no MCLs are in place. It is not yet clear whether Alabama will seek EPA approval for its proposed alternative CCR rules.

Virginia has taken the opposite approach. In 2014, Virginia adopted the then-current version of EPA’s CCR Rule into its state solid waste regulations. The Virginia Department of Environmental Quality has objected to EPA’s proposed revisions to the CCR rule and has said that it is opposed to any rule revisions which would allow more “flexibilities” to the states and operators of CCR landfills.

The final contours of the Coal Ash Rule are not likely to be in place until the DC Circuit issues its ruling in the USWAG case and EPA promulgates its final revised Coal Ash Rule in 2019. While the EPA continues to encourage states to submit their own proposed permit plans, states will likely be slow to promulgate such plans, given that the plans must be “at least as protective” as the federal CCR Rules, and the final federal CCR rules have yet to emerge.

The continuing uncertainty between the federal and state rules and programs adds an additional layer of complexity for regulated entities managing CCR disposal units, particularly for entities with disposal units in multiple states.

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